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  • 1. The Forgotten National Treasure: Marriage, The Creation of Social Capital, and the Building of the Social Infrastructure   Lynn D. Wardle Bruce C. Hafen Professor of Law Brigham Young University School of Law Provo, UT, USA   Presented to the Australia Family Association Annual Convention October 18-19, 2008, in Freeport, Australia
  • 2. Thank You
    • - for inviting me to join you here;
    • - for asking me to speak;
    • - for all you do in defense of marriage and families .
  • 3. I. Introduction: Perspective & Context
    • A. Lest We Take Ourselves Too Seriously –
    • Bumper Sticker on Wife’s car:
    • “ Sometimes in the morning I wake up grumpy, but usually I just let him sleep!”
  • 4.  
  • 5.  
  • 6. New Yorker cartoon: Mom to daughter: l honestly don't know what you’re waiting for: By the time I was your age, I’d already been married twice ."
  • 7. The Forgotten National Treasure
    • Outline
    • I. Introduction: Perspective & Context
    • II. Marriage Is the Foundational Social Institution Which Creates Social Capital and Builds Social Infrastructure
    • III. Society, Families & Individuals Suffer When Marriage Is Weakened
    • IV. The Attack Upon Marriage
    • V. Conclusion: Stand Up & Speak Up for Marriage
  • 8. B. The Best of Times, The Worst of Times
    • “ It was the best of times it was the worst of times, it was the age of wisdom it was the age of foolishness, it was the epoch of belief it was the epoch of incredulity, it was the season of light it was the season of darkness, it was the spring of hope it was the winter of despair, we had everything before us we had nothing before us . . . .” Charles Dickens, A Tale of Two Cities (1859).]
    •  
  • 9. The Worst of Times
    • #1) Globally and in the United States, marriage and the marital family are under besieged by social and ideological influences that threaten and have greatly weakened these foundational social institutions.
    • Today, the greatest challenges to the family today are from internal disintegration rather than external deprivation.
  • 10.
    • For example, in the USA:
    • More than 50% of all couples cohabit before their first marriages (2002);
    • More than 40% of all marriages end in divorce (2004);
    • Nearly 37% of all births were out of wedlock (2005); &
    • Nearly 25% of all known pregnancies are aborted (2005).
  • 11. #2) Globally there is a strong movement to legalize SSM.
    • Same-Sex Marriage Legal: Six* Nations and Three USA States: The Netherlands, Belgium, Canada, Spain, South Africa,* and Norway (2009) ( US: MA & CA & CN )
    • Same-Sex Unions Equivalent to Marriage Legal in Thirteen Nations and Six US States: Denmark, Norway, Sweden, Iceland, Finland, France, Germany, Luxembourg, Slovenia, South Africa*, Andorra, Switzerland, UK, New Zealand ( US: CA, CN, NH, NJ, OR, VT ) ; and Australian Cap. Terr.
    • Same-Sex Unions Registry & Some Benefits in Seven Nations and Five US states: Argentina, Columbia, Croatia, Czech Republic, Hungary, Israel, Portugal ( US: AK, DC, HI, ME & WA ) ; and South Australia, Tasmania, Victoria, recent Fed laws.
  • 12. Global (US) Progress of Same-Sex Marriage, and Marriage Equivalent Civil Unions or Partnerships, 1985-2007 Conclusions: YEAR Same-Sex Marriage Same-Sex Marriage-Equivalent Unions/Partners 1985 0 0 1990 0 1 1995 0 3 2000 0 6 (1) 2005 3 (1) 13 (3) 2007 5 15 (6) 2008-Oct 6* (3) 15 (6)
  • 13. THE BEST OF TIMES: #3) Constitutional Protection of Marriage & Family Now Is the Global Norm
    • Explicit constitutional protection for family and marriage is the global norm in international and comparative constitutional law today.
    •  
    • The Universal Declaration of Human Rights adopted 1946, recognizes that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
  • 14. 33 International Treaties, Charters, Conventions and other Legal Documents with Provisions Concerning Marriage and/or Families (Research originally compiled by Scott Borrowman, J.D., 2005)
  • 15. 145 Nations (/191) with Constitutional Provisions on Family and Marriage (Including 83 Nations with Substantive Protections of Marriage)
  • 16. Thirty-Seven of 191 Sovereign Nations Have Constitutional Provisions/Amendments Protecting Conjugal Marriage
  • 17. Examples of Constitutional Texts:
    • Article 45 of the Cambodian Constitution: “(4) Marriage shall be conducted according to conditions determined by law based on the principle of mutual consent between one husband and one wife .”
    • Article 42 of the Constitution of Columbia: the family “is formed . . . by the free decision of a man and woman to contract matrimony . . . .”
    • Article 24 of the Constitution of Japan: “Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.”
    • Article 110 of the Constitution of Latvia reads: “The State shall protect and support marriage— a union between a man and a woman,…”
  • 18.
    • #2 ) In Many Nations & Communities There Is A Strong Grassroots Movement to Give Constitutional Protection to Conjugal Marriage and Marital Families That Surpasses the Movement for Same-Sex Marriage.
  • 19.
    • Australia: Marriage Amendment Act 2004
    • “ Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognized as marriage in Australia.”
  • 20. Same-sex Marriage in the US
    • Same-Sex Marriage is explicitly prohibited by written law in 45 states (all states except Connecticut, Massachusetts, New Jersey, New Mexico, and Rhode Island*).
  • 21. 27 States That Have Adopted Constitutional Amendments Protecting Conjugal Marriage and States with Pending Votes on Marriage Amendments
    • Arizona
    • California
    • Florida
    27 States with marriage amendments : 3 States with pending votes (Nov. 2008):
  • 22. VOTER SUPPORT FOR STATE MARRIAGE AMENDMENTS
    • The average vote in favor of state marriages amendments in all of the states combined is nearly 69%.
    •  
    • The popular support in the state votes has ranged from a low of 57% in favor (OR) to 84% in favor (MS).
  • 23.  
  • 24. Support for Marriage Is Especially Strong Among Minorities and Emerging Democracies
    • General Colin Powell described the difference between black civil rights claims for equality and gay rights claims for equality. “Skin color is a benign, non-behavioral characteristic; sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.”
    • Minority votes for SMAs higher than majority.
  • 25. Defense of Marriage in Central & Eastern Europe
    • Recent conference of family law experts from 11 nations in Central & Eastern Europe:
      • none have SSM,
      • only one has marriage-equivalent SSCUs.
    • Five nations in Central and Eastern Europe are among the 37 Nations of the world whose constitutions explicitly define marriage as the unions of a man and a woman. (Bulgaria, Latvia, Lithuania, Moldova, Poland, and Ukraine).
  • 26.
    • C. So What?
    • Who cares?
    • What does it matter?
  • 27. II. Marriage Is the Foundational Social Institution Which Creates Social Capital and Builds Social Infrastructure
    • A. Forgotten National Treasure of Marriage –
      • Acres of diamonds!! At home.
      • Undervalued marriage.
  • 28.
    • Aristotle & Plato, Augustine, etc. - Marriage is the foundation of society
  • 29.
    • Anthropologist David W. Murray
    • Legal Historian Charles Reid
    • G.K. Chesterton
  • 30. IV. When Marriage and Marital Families Disintegrate, Society and Individuals Suffer, Struggle and Are Vulnerable.
    • “ As the family goes, so goes the nation, and so goes the world in which we live.” -- Pope John Paul II
    • “ When the home is destroyed, the nation goes to pieces.” – President Spencer W. Kimball, Ensign , May 1978.
    • “ A nation will rise no higher than the strength of its homes. If you want to reform a nation, you begin with families . . . .” President Gordon B. Hinckley, (Interview with Mike Wallace)
  • 31. Institute for American Values 2008 Study
    • Public costs to American taxpayers of family marital break-up and of non-marital child-bearing (CBOW) in the United States, total at least $112 billion each year for American taxpayers
      • $70 Billion federal tax dollars and
      • $42 Billion state and local tax dollars each year.
      • -- In California the public (tax) costs of family fragmentation amount to $4.829 billion in taxes per year (11.5% of the total CA state and local tax burden).
  • 32. V. The Attack Upon Marriage
    • A. The movement to legalize SSM is the greatest threat to marriage and marital families now.
    • It will radically change marriage by the transformative power of inclusion.
  • 33. B. Preliminary Points re: Same-Sex Marriage
    • 1) The issue is about Marriage!
    • Don’t get distracted; it’s not about gays or same-sex etiology etc., its about marriage!
    • Advocates of same-sex marriage seek to change marriage, not marriage.
    • Calling a same-sex union a marriage does not make it so.
    • 4) Protection of Marriage is a Civil Rights Cause.
    • 5) The claim for Same-Sex Marriage is Not a Claim for Tolerance
    • All Relationships Are NOT Equal
    • We didn’t choose this battle, but cannot avoid it.
  • 34.
    • C. The Movement to Legalize Same-Sex Marriage Is An Attempt to ‘Capture’ Marriage
    • The disreputable history of such movements
  • 35. Transformation of Marriage: Same-sex relationships differ in profound ways form conjugal marriage
    • For example, a study by Dutch AIDs researchers, published in 2003 in the journal AIDS, reported on the number of partners among Amsterdam’s homosexual population. They found:
    • - 86% of new HIV/AIDS infections in gay men were in men who had steady partners.
    • - Gay men with steady partners engage in more risky sexual behaviors than gays without steady partners.
    • - Gay men with steady partners had 8 other sex partners (“casual partners”) per year, on average.
    • - The average duration of committed relationships among gay steady partners was 1.5 years.
    •   A more recent study of 2,583 older sexually active gay men reported that “the modal range for number of sexual partners ever . . . was 101-500,” while 10.2 percent to 15.7 percent had between 501 and 1,000 partners, and another 10.2 percent to 15.7 percent reported having had more than one thousand sexual partners in their lifetime.
    • Kirk and Madsen reported in their that “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%. . . .”
  • 36. Same-sex relationships differ in profound ways form conjugal marriage
    • A 2006 Norwegian study found divorce-risk levels were about 50% higher for registered gay men partnerships than for comparable heterosexual couples, and controlling for variables, the risk of divorce was twice as high for lesbian couples as it was for gay men couples.
  • 37.
    • Threats to Civil Rights
    • CA SCT decision : Catholic doctor legally liable (if facts) because declined ART services to a lesbian; no religious exemption
    • Elsewhere:
    • -Georgetown University
    • United States, the Boy Scouts denied privileges and public facilities.
    • -Canada, Knights of Columbus was held liable -Hospital (abortion already, so same-sex marriage, also)
    • -Educators and schools are vulnerable.
    • - Massachusetts numerous school controversies
    • - British Columbia, Trinity Western University denied accreditation
    • Free speech rights have already been abused: effort to “silence” oppons
    • -Sweden Pentacostal Pastor Ake Green
    • -Similar cases have been reported in Canada and England & PA & OH (African-American administrator at college in OH).
    • Suit involving CDC counselor for referral (‘homophobic’)
    • - Ireland, ICCL warned that Catholic Bishops and clergy of hate speech
  • 38. Violation of Civil Rights
    • Hyatt Hotel in San Diego – boycott to punish
      • - AALS partially supports the boycott
      • San Francisco Board of Supervisors Resolution against Catholic Adoption Policy
      • San Francisco BS Resolution against Evangelical youth organization
      • New Mexico Photographers forced into court, ordered to pay nearly $7,000 in attorneys fees for not photographing same-sex commitment ceremony
      • Judges/Magistrates/Registrars punished, forced to resign
  • 39. Available at the BYU Bookstore at http://www.byubookstore.com/ePOS/form=item.html&item=0761843160&store=439 . Also available from the publisher at http://www.univpress.com/Catalog/SingleBook.shtml?command=Search&db=^DB/CATALOG.db&eqSKUdata=0761843167
  • 40.
    • We must speak up and stand up
    • One of our responsibilities as parents, citizens, and especially scholars is to warn of dangers
    • - Elie Wiesel, Night: “Moishe the Beadle”
    • Elie Wiesel, Nobel Acceptance Speech: “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .” We too must speak up and get involved.”
    • “ There is so much to be done, there is so much that can be done. One person – a Raoul Wallenberg, an Albert Schweitzer, a Martin Luther King, Jr. – one person of integrity can make a difference, a different of life and death.”
  • 41.
    • Standing for Something
    • “ We cannot effect a turnaround in a day or a month or a year. But with enough effort, we can begin a turnaround within a generation, and accomplish wonders within two generations – a period of time that is not very long in the history of humanity.”
      • Gordon B. Hinckley
  • 42. Concluding Observations
    • It’s About Marriage !!!
  • 43. Available at the BYU Bookstore at http://www.byubookstore.com/ePOS/form=item.html&item=0761843160&store=439 . Also available from the publisher at http://www.univpress.com/Catalog/SingleBook.shtml?command=Search&db=^DB/CATALOG.db&eqSKUdata=0761843167